Mahesh Bangera
A is the Share-holder of the Flat. He allows his sister (B) to occupy the flat since the purchase of the Flat, within a year. (A & B) together signed a letter to the Society to transfer the said Flat to (B). Within 4-years time after the letter was given to the society (A) expires without any nomination and will.
(A)’s wife (C) writes a letter to the society to transfer the said flat to her name, (B) meanwhile also writes to the society not to transfer the said flat as she is a claimant and reminds the society of the (A&B) jointly signed letter with the society which the society office bearer confirm in writing stamped and signed saying it is in the record of society and issues a copy of same letter of (A&B) letter to (B).
Society asks (B & C) to be present in the EOGM for discussion as per the claims made and after brief discussion it was concluded that unless it is mutually agreed between (B&C) or thru Court order no transfer. It was recorded in the MOM.
After 26 years of EOGM decision the share certificate was transferred to (C ) while (B) was still occupying the same flat, (It seems that some forged paper work was done/manipulated/exchanged in Society Office Record)
Here what options does B have w.r.t taking action on the said society for misconception .
Your wisdom and understanding would be appreciated in the fight back against the cloud of present corrupt environment!
I C Naik
A. The Bye Laws contain simple procedures for almost each and every matter related to membership of a cooperative housing society.
In the case before us three important Procedures are of our concern:
1. Of registering a nomination of a person’s name to whom a membership is to vest in case of death of a member per Bye Laws 32-35. Where a member dies without registering nomination, society management has to conduct some procedure as per Bye Law No 35 to identify the name of the genuine transferee in law. {See the procedure listed in D after answer to the question as to what B can do?}
2.Transfer of Shares and Interest in the Capital/Property of the Society per Bye Law No 38.
3. Sub-letting, parting with possession of Flats etc. and appointing the occupier a “Nominal Member of the society” per Bye Law No 43.
B. Going by the facts
1. Member Mr. A has instead of occupying the flat himself. parted with possession of the flat to Miss B a member of his family and as such Mr. A escaped paying Non Occupancy Charges.
2. A and B had registered with the society a joint letter of intention to the effect that A agreed to transfer the flat bought by A in the name of B.
3. The transfer procedure A2 was not followed as otherwise the Society records of this flat would have carried a copy of the registered Gift Deed/Sale Deed in terms of Bye Law No 38(e)(iv).
4. A dies without filing Nomination and hence Bye Law No 35 came in to picture.
5. The general body meeting’s resolution directing the warring family members to come to a mutual agreement or get a Court order as to who should inherit the flat was a decent step.
6. After a very long period of time, while B continued to be in occupation of the flat, the society transferred the membership and Shares and Interest in the Capital/Property of the Society in the name of Mrs. C.(Presumably following the procedure as per D below or otherwise)
C. The options for Ms B
1. Persuade Mrs. C to let B occupy the flat and upholding the wish of her late husband A to provide dwelling place/accommodation to his sister, request the society to transfer the membership and Shares and Interest in the Capital/Property of the Society in the name of Ms. B this will be a gift from C to B liable to registration and transfer procedure.
2. If it is apprehended that Mrs C got the transfers done by the Committee without following the procedure as per D below, Ms B should apply to the appropriate Court for a succession certificate if she has any valid documentary proof of her brother Mr. A was having a WILL to bequeath the flat to his sister.
D. Identifying the true successor to a flat in housing society:
1. The society shall invite, within one month of his death, claims or objections to the proposed transfer of Shares and interest of the deceased member, in the Capital/Property of the society, by a public notice, in the prescribed form, exhibited on the notice board of the society.
2. It shall also publish such notice in at least two local newspapers, having wide circulation.
3. The entire expenses of the publication of the notice shall be recoverable from the value of shares and interest of the deceased member in the Capital/Property of the society.
4. After taking in to consideration the claims or objections received, in response to the said notice, and after making such inquiries as the Committee considers proper, in the circumstances prevailing, the Committee shall decide as to the person, who in its opinion, is the heir or legal representative of the deceased member.
5. Such a person will be eligible to be a member of the society subject to the provisions of the bye-law No. 17(a) or 19, provided that he gives
1. along with his application for membership in the prescribed form,
2. the indemnity bond in the prescribed form, indemnifying the society against any claims made to the shares and interest of the deceased member in the Capital/Property of the society, at any time in future by any person.